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[Notes supplementary to the Johns Hopkins University 
Studies in Historical and Political Science.— No. 8.] 



LAW AND HISTORY. 

By WALTER B.'SCAIFE, LL. B.; Ph.D. (Vienna). 

"The laws of a nation form the most instructive part of its history."— G/bbon. 

" Wie das Volk, so das Recht, und wie das Kecht, so das Volk, so dass erst diirch die 
Erkenutnissder iibrigen Seiteu des nationalen Lebens die Natur des Rcchts, nnd diirch 
diese umgekehrt wieder, die Eigenthiinilichkeit uud das Wesen des Volks verstuudlich 
wird." — WU/ielm Arnold. 

Since the days of Savigny it has gradually become generally recognized 
that the historical method of investigation is necessary to a thorough under- 
standing of the. law ; on the other hand eminent histonans have acknowl- 
edged their obligation to the law books for valuable information. Sir Henry 
Maine, in his " Ancient Law," first published in 1861, showed practically 
how a masterly historical work may be founded on a study of the law. 
Various constitutional histories of high merit, based on public law, parlia- 
mentary debates, etc., have of late years appeared and been widely read. 
But there is another side to the sul)jeet which as yet seems to have attracted 
but comparatively little attention. Aside from those laws directing the 
action of government, whose working is patent to every observer, there is 
in each country a great body of private law, which, governing the daily 
actions of the people, has its silent, inconspicuous, but none the less sure 
and weighty influence upon the national developmeilt. The growth of 
custom into law and the latter's embodiment in institutions appear to the 
present writer to form the very kernel of history ; while the reigns of kings, 
the ordinary meetings of parliaments, the lives of prominent personages, are 
merely the outer covering. In the obscure lives of the masses, is to be 
sought the hidden centre of action, whose nature, and not that of the sur- 
face, determines the main lines of historical development. This is true not 
only in countries where the people, through their representatives, take an 
active part in the work of governing, but even in those under despotic rule ; 
as is shown by the powerlessness of imperial decrees to stop such movements 
as the growth of C^hristianity in ancient Rome, or the spread of democratic 
ideas in Russia to-day. In the evolution of societies as in that of plants and 
animals, it is the qualities and environments common to the great masses 
of individuals which determine the nature of the species ; and not those 
uncommon, striking characteristics which may bring a few individuals into 
prominence. The latter, it is true, may sometimes be indicative of new 
conditions of life; and their possessors, accordingly, the first beginnings of 
a new species of plants or animals ; or in national development, they may 
be the forerunners of a new political era. But they are rather the first 
fruits of the silent workings of the past, than the sole cause of the changes 
that are to follow. 



2 Law and History. [94 

How then are we to get at this life of the masses in historical investiga- 
tion ? The sources of information are various. Though it is their uncom- 
mon qualities which bring individuals into prominence, such persons must 
still have intercourse with the great masses by whom they are surrounded, 
and must themselves possess most characteristics in common with their 
humbler contemporaries; hence biographies can be of great service in this 
field of investigation. But the writing of biographies occurs only in an 
advanced stage of a nation's development, and accordingly the historian 
finds this a comparatively limited source of knowledge. Kecords of the 
doings of governing bodies and of the proceedings in courts of justice are a 
still more valuable and extensive storehouse for the historical investigator. 
There are many rules, however, regulating the daily conduct of the masses, 
which find no place here. Whether or not these rules can properly be 
looked upon as law, it is at times scarcely possible to decide. The origin of 
any particular customary law is often difficult, if not impossible to discover. 
The general course of the development of such law is, however, easy of 
comprehension. The original idea occurs to some one, perhaps an obscure 
individual; then finds acceptance among his neighbors, and later extends 
itself wide enough to become a fashion; receiving from time to time modi- 
fications through the influence of other minds and new conditions. Having 
some quality by which it attaches itself to the community, it acquires per- 
manency in an institution, which then in its turn is recognized by the ruling 
powers as the embodiment of certain legal conceptions.' In the primitive 
stages of society, practically the whole life is strictly regulated by custom, 
which is really unwritten law. Here fashion, religion and law are so inti- 
mately interwoven that it is impossible to separate the different elements. 
The slow process of national development is accompanied by difTerentiation 
of the elements of national life; fashion becomes an ephemeron; religion, 
always battling for the mastery of the whole, slowly recedes to its place of 
governing only its particular institutions and regulating the inner life of its 
adherents;^ while the law gradually assumes the special regulation of cer- 
tain, the protection of all, the relations of life. In order to the proper 
exercise of these functions, the law must embody all that is permanent in 
the life of the people ; hence arises its usefulness as the best instructor in 
the most valuable kind of history. 

Though this is true in general, the fact must not be lost sight of, that the 
yalue of the laws of various countries for the historical student is not always 
the same. In ancient Egypt, for instance, law was largely absorbed in reli- 

1 This idea is elaborately treated in von Ihering's Zweck ini Recht, 2d vol.. under the 
heading, " Die Theorie der Sitte." 

2 Buckle, Historx^of Civilization in England, I., 353, speaking of the recent history of 
England, says:—" \^hin the short space of three centuries, the old tlieological spirit has 
been compelled, not only to descend from its long established supremacy, but to abandon 
those strongholds to which, in the face of advancing knowledge, it has vainly attempted 
to secure a retreat. All its most cherished pretensions it has been forced gradually to 
relinquish." 



95] Law and History. 3 

gion, tlie priests being the sole depositaries of the knowledge of both,' and 
divulging only so much as served to keep the people in a degraded condi- 
tion and subject to strict control. No one denies the political activity of the 
Greeks ; but as their legal work produced no great system of laws,- the study 
of the law as a source of Grecian history, has been comparatively neglected 
in favor of the more striking triumphs of their philosophy and art. But if 
Greek law gave nothing else to the world at large, it furnished the inspira- 
tion of Aristotle's Politics, which has been by no means without influence. 
Kome, however, was the great law-giver of the ancient world, and has been 
the source of much that is most valuable in the law of modern Christen- 
dom.^ As the genius of Athens found its best expression in art, so the 
genius of Kome reached its highest development in law. This fact is uni- 
versally recognized, so it is not necessary to dwell upon the subject. During 
the Middle Ages the law gradually moulded itself into that complex of 
institutions embraced under the name, feudalism. How much feudalism 
was the product of Roman law, or how much was due to primitive Germanic 
institutions, it is not here the place to discuss; but that the law, in the 
broad sense in which the term is here employed, contains the best mate- 
rials for the history of that period can scarcely be denied.* In the modern 
world, the records of the proceedings of legislative bodies, executive officers 
and courts of justice form, without any doubt whatever, the weightiest and 
most reliable sources of information for the historian. 

There are two ways of investigating the laws for historical purposes. The 
first and simpler is merely to look on the surface for bare facts. Whether 
or not there is much to be found in this manner depends on the genius and 
practice of the people whose laws are under consideration. England, for 
example, has stored up in her records a vast amount of information as to 
the lives of her people. As a conservative nation, she has generally sought 
the reasons therefor, wlien changing the law ; and these reasons, the circum- 

1 Wilkinson, The manners and customs of the ancient Egyptians. Birch's edition, I., 
18G, 293. 

2 " Ein solches Rechtsvolk wie die Rouier sind die Griechen allerdings nicht, nament- 
lich au.sdem Grunde, weil der BegiifFder Rechtspeisonlichkeit bei ihnen noch keineswegs 
voUig entwiekelt erscheint." Karl Friedrieh Hermann uber Gesetz, Gesetzgebung und 
gesetzgebende Gewalt ini giiechischen Alterthume. 

3 Sir Henry Maine [Ancient Law, Preface to the first edition] speaks of the Roman law 
as "supplying from its later rules tlie staple of the civil institutions by which modern 
society is even now controlled." 

4 As to the West Goths Dahn write.s : — " Auch sonst Kennzeichnen Kindasvinths Prin- 
ciplen seine zahlreiche Gesetze; dieselben wurden, so hat man niit Recht bemerkt, auch 
•ohne die Ueberliefeniug Fredigars, uns vollstiindige Einsicht in sein Zeitalter und — fiigen 
wir hinzu — in seine innere Politik gewiihren " Bluntschli, Lehre vom modernen Staat, 
I., 1.33. "Die ganze Rechtsbildung hatte wiihrend des Mittelalters einen standischen 
Ausdruck und einestandische Fiirbung bekomnien. Wie jeder. Stand seine eigene Tracht, 
so hatte jeder Stand auch sein besonderes Recht und seine ihin eigene Rechtspflege. Der 
Klerus lebte nach kanonisehem Recht, die Fiirsten naeh Herrenrecht, die Ritter hatten 
ihr Lehensrecbt, die Dienstleute ilir Dienstrecht, fiir die Burger gait das Stadtrecht und 
fiirtiie Bauern das Recht der Weisthiimer iind das Hofrecht. 



4 Law and History. [96 

stances of the time, have been frequently related as introductions to new 
laws. It matters not whether the enactment flowed logically or not from 
the premises given ; the latter afford us, at all events, an insight into the 
occurrences of the times and the manner of thought of the people. For 
this kind of knowledge the records of the courts of justice also form an 
exceedingly valuable source. Civil suits bring to light much of the daily 
intercourse of a people, especially business methods; while the records of 
criminal trials reveal at least one side of life in all grades of society, from 
that of the poor drunken vagabond to that of the defaulting bank president 
and the political ofl'ender of high degree.' Furthermore it is patent to any 
one giving it consideration that there is a close connection between great 
historical movements, such as the l-'rench Revolution, or the various civil 
wars of England, and the administration of criminal justice. 

Another and more valuable method of investigating law is also open to 
the historian, namely, the philosophical. At the same time it is beset with 
more danger and must accordingly be more carefully employed. The extent, 
however, to which this method may be legitimately used and the valuable 
results therefrom attainable, have been shown with splendid success by Sir 
Henry Maine. It is no easy matter to read between the lines of the cold 
and formal language of the law ; but he who understands how to read aright 
can there find the causes which have been the chief determining factors in 
a nation's history ; for here is gradually crystallized that which lies deepest 
and is most permanent in the lives of the people. Moreover, there are 
valuable lessons of a general character to be learned from such study. For 
example, he who is in haste to bring the government of the world to perfec- 
tion, will learn that the best progress and that producing the most perma- 
nent results is of exceedingly slow growth; that where gigantic strides in 
political life have been hastily made, they have overstepped their aim and 
necessitated a painful reaction. On the other hand it Avill be seen that there 
is a law of general progress at work in the world, even though we have 
sometimes to contemplate the sad spectacle of an individual nation's decay. 
As the individuals of the present are the inheritors of the experience of 
their ancestors through all the past, so are the nations now existing the 
recipients of the world's national experience since the dawn of history. Jf 
the present has not profited as much as it might have done from the strug- 
gles, defeats and triumphs of the past, it is nevertheless true that no student 
of history but the most confirmed pessimist, can deny that the present gen- 

1 Stephen, History of tlie ciiininal law ol Kngland, I., 417. " Many of the trials which 
took phice in the reigns of William III., Anne, (Jeorge 1., and George II , arc deeply 
interesting on many accounts, and especially on account of the strong light which they 
throw, not only on tlie history, hut still more on the mannersof the time." ('The manners 
of the lime," we venture to suggest are an important element, and not .something out- 
side, of history.) p. 418. "The private trials which took place during this period weie 
of extraordinary interest, and set the manners of the time hefore the reader with an 
authenticity and life which, in my opinion, is more curious and entertaining than any 
romance ever written." 



97] Law and History. "5 

eral condition of mankind, at least in Christendom, is much superior to that 
at any period of the past. With oriental nations the case has been different. 
There, religion at an early period got the upper hand and suppressed the 
natural development of the peoples ; for religion, as the supposed direct 
revelation of a perfect divinity, can logically admit of no improvement ; 
hence the conservatism of every form of religion and its contest with the 
advance of science ; hence also the eventual stagnation or retrogradation of 
nations under priestly rule. But as Japan has within the present century 
greatly improved under the influence of western stimulus, has abolished its 
feudal institutions, and even given u[) its state religion, tliere is ground for 
liope that the law of progress, though never so slow in its working, will also 
in the Orient hold good. 

In the study of law one finds also well illustrated the working of good out 
of evil ; how evil circumstances occasion the passage and enforcement of 
good laws; and on the other hand, how unrighteous laws work out their 
own reform through the evil they occasion.^ The intimate connection of 
the various classes of society and the wide-reaching influence of apparently 
unimportant actions receive here also illustration and proof. He who would 
deny that society is an organism should take the trouble to trace out as far 
as possible the efl^ect of single laws ; and it is likely he would soon become 
convinced of his error, if indeed his mind were not already closed to the 
reception of new truth. A case occurred some years since in New Hamp- 
shire, which affords an excellent illustration of the point in hand. In the 
summer of 1885 the legislature of that state passed a so-called "valued 
policy" law, which " forbade any outside insurance company to apply for 
the removal of a suit to which it was a party from the State to the Federal 
courts, on penalty of a revocation of its license, and provided that in any 
suit brought in the State courts against an insurance company to recover 
for a total loss sustained by fire or other casualty to real estate or to build- 
ings on the land of another, the amount of the damage should be the amount 
expressed in the contract as the sum insured, and no other evidence should 
be admitted on trial as to the value of the property insured." The conse- 
quences flowing from this law have been of wide range and various char- 
acter. The outside companies fearing a great increase of fires and consequent 

1 A good case iu point is given in Steplien, I., 415-lG. " By the end of the [17th] 
century the evils of judicial corruption and subserviency, and the horrors of a party 
■warfare carried on by reciprocal prosecutions for treason, alternately instituted against 
each other, with fatal effect, by the chiefs of contending parties, had made so deep an 
impression on the public imagination, that a change of sentiment took place which from 
that time effectually prevented the scandals of the seventeenth century from being 
repeated. I have dwelt at length upon the second half of the seventeenth century because 
it was from its troubles and scandals that a better system arose." Arnold, Recht uud 
Culturleben, 152. ''Und gerade der Absolutismus legte den Grund zu einer gemein- 
schaftlichen Betheilung Aller an den offeiitlichen Interessen, wahrend es bis dahin nur 
elne Vertretung einzelner Corporationen und St.ande gegeben hatte. Das moderne 
Representativsystem ware ohne den vorausgegangenen Absolutismus nicht moglich 
gewesen." 



6 Law and History, [98 

losses through incendiarism, withdrew from the state. As tlie policies on 
valuable property ran out, the owners found it impossible to renew their 
insurance. Manufacturers threatened to remove their works to other states ; 
the owners of summer hotels were in great straits and, according to report, 
would gladly have sold their property. What is certain is, they refused to 
spend money on proposed improvements because they considered their 
investments unsafe. One good result there has been. The owners of prop- 
erty, fearing losses, exercised greatly increased diligence against accidents 
by fire, with the astonishing result that the number of fires decreased sixty 
per cent. Another point was brought out, going to show the important 
consequences of apparently luiimportant actions. It is alleged that the law 
was proposed merely as a threat, to force money as bribes from the foreign 
insurance companies. The latter refused to become parties to any such 
black-mailing scheme, and the bill became law — witii what results we have 
already seen.' If one law in one year could have such effect, it is no ille- 
gitimate conclusion to maintain that the whole body of law is one of the 
weightiest, if not the very foremost, of all the factors entering into national 
life ; and hence a correspondingly important source of history. 

But why should the law occupy this unique position? Expressed in 
general terms, it is because it lies in the very nature of man himself. In 
the realm of Nature there must be order, for chaos means destruction. 
Likewise in society there must be order, for anarchy also means destruction. 
Order in the material universe is secured by uniform courses of action which 
are styled the laws of nature; and the action of these uniform laws under 
varying conditions produces multiformity. So, too, order in society is 
secured by general rules of action, or laws, which in their action upon differ- 
ent individuals also produce multiformity. Nor is human law at all the 
arbitrary, matter-of-chance thing it at first sight appears to be. A study of 
comparative jurisprudence demonstrates that the genius of a people {Volks- 
geist) counts for a great deal in legal development ; the next strongest factor 
is the pressure of circumstances ; while the arbitrary will of individuals has 
but little permanent effect, no matter how great their power for a time may 
be.'^ Kindred peoples under like circumstances have had practically the 

1 The authority for these .stateiuents is found in articles which appeared in Nos. 1054, 
1064, 10G7, and 1077 of The Nation. A case in point is given by Keeves, History of 
English law, II., 158. 

2 Gibbon, Decline and fall of Rome, ch. XLIV. "Once, and once only, he [Augustus] 
experienced a sincere and strenuous opposition. Ilis subjects had resigned all political 
liberty ; they defended the freedom of domestic life. A law which enforced the obligation, 
and strengthened the bonds of marriage, was clamorously rejected." Buckle, History of 
civilization in England, I., 358. These princes (James I., and Charles I.] exhausted their 
strength in struggling against the tendencies of an age they were unable to understand ; 
but happily the spirit which they wished to quench had reached a height that mocked 
their control." Ibid. .381. "If we look only at the characters of the rulers, and at their 
foreign policy, we must pronounce the reign of Charles II. to be the worst that has ever 
been seen in England. If, on the other hand, we confine our observations to the laws 
which were passed, and to the principles which were established, we sliall be obliged to" 



99] Lmv and History. 7 

same laws; — as witness, for example, the existence of feudalism and the 
power of the Churcii in all the countries of western Europe during the 
Middle Ages. The fact is that almost all the relations of life, those of the 
family, of the individual toward the state, and those of the business world, 
are legal relations ; and the laws must therefore exist, if not for their imme- 
diate regulation, at least for their protection. Accordingly if the entire 
really effective law of any people were known, there could be no better 
source for the true understanding of that people's history. To be sure there 
have existed many laws which were dead letters from the time of their 
enactment, and others that have become so through changes of time and 
circumstances. Tlie laws must hence be studied with care; but the rule as 
to their value generally remains none the less true. Here then lies the 
basis of the argument. With the exception of matters of religion, all the 
important relations of life are legal relations ; and even religious institu- 
tions are subject to legal provisions ; hence the most accurate knowledge of 
the life of a people, which is the proper subject of history, is to be gained 
by a study of their laAV. 

Growth of civilization means an increase in the complexity of the rela- 
tions of individuals ; ' so there must be a corresponding increase in the laws 
affecting those relations. Compare for an instant the life of a savage with 
his monotonous round of hunting and fishing, eating, drinking, sleeping and 
dancing, to that of a business man of to-day ; — the latter perhaps head of a 
manufactory, director of a bank, of an insurance company, and stockholder 
in other business companies ; to these, add his duties as a citizen, perhaps a 
legislator, and his relations toward polite society ; — and it will be seen that 
the increase in complexity of the relations of life has become enormous 
during the advance from savagery to civilization. This difference is strik- 
ingly manifested in the respective laws of diflferent peoples, or in the laws 
of the same people at diiferent periods.^ At an early stage of progress the 

"confess that the same reign forms one of the brightest epochs in our national annals." 
Ibid., 387. "Such writers [political compilers] do not perceive that the history of every 
civilized country is the history of its intellectual development, which kings, statesmen, 
and legislators are more likely to retard than to hasten; because, however gi-eat their 
power may be, they are at best the accidental and insutBcient representatives of the spirit 
of their time; and because, so far from being able to regulate the movements of the 
national mind, they themselves form the smallest part of it, and in a general view of the 
progress of Man, are only to be regarded as the puppets who strut and fret their hours 
upon a little stage ; while, beyond them, and on every side of them, are forming opinions 
and principles which they can scarcely perceive, but by which alone the whole course of 
human affairs is ultimately governed." See also Tolstoi's elaborate appendix to War and 
Peace. 

1 Herbert Spencer, First Principles, ?122. "As we see in existing barbarous tribes, 
society in its first and lowest form is a homogeneous aggregation of individuals having 
like powers and like functions. . . . Beginning with a barbarous tribe, . . . the progress 
has been, and still is, towards an economic aggregation of the whole human race ; grow- 
ing ever more heterogeneous in respect of the several functions assumed by separate 
nations, ... by the local sections of each nation, ... by the many kinds of makers and 
traders in each town, ... by the workers united in producing each commodity." 

2 This is well illustrated by the growth from the Twelve Tables to the Corpus juris civilis 
of Rome ; or the growth from Bracton to the English and American law of the present. 



8 Law and History, [100 

most important relations are of the individual, or rather of the family, to 
the community ; for the family as a whole is responsible for the conduct of 
its individual members,^ and forms the unit of social organization. The 
law is therefore in the main, if not entirely, public law ; as witness what we 
know of early Grecian law, or what is left us of the Twelve Tables of Eome. 
On the other hand, take up the statute-book of any civilized country of 
to-day, or the Corpus juris civilis of Rome, and see what a tremendous pro- 
portion is occupied in treating matters affecting the relations of individuals 
to each other. We can judge then pretty accurately of the stage of a 
people's civilization at any period from an examination of its contem[)orary 
laws.^ The patriarchal system, so characteristic of primitive societies, can 
not continue in tiie face of the multiplied activities of advanced civilization. 
Even tiie deeply-rooted patria potestas of ancient Komc had to give way 
gradually before the increasing importance of the individual, as the rela- 
tions of society became more complex.^ Feudalism appears to have been 
an attemj)t to organize the people of a whole country on the patriarchal 
plan, wherein every member had his jilace, his rights and his duties ; and 
the laws were minute in regulating each. The individuals again demanded 
recognition as such, and representative .systems of government have been 
slowly evolved, with an almost constantly increasing tendency toward 
democracy, or, better expressed, toward self-government. Whether the 
latter is to be the final form of government is of course open to doubt. Or 
whether the civilized world will again see a patriarchal state, though of a 
new species, /. e. a state governed according to the ideal of the socialists ; or 
whether the ultimate condition of society will be one in wliich the individual 
will be really supreme, and, according to tiie ideas of Mr. Herbert Spencer, 
all action whatever be the result of voluntary will on the part of the indi- 
vidual, only the future can decide. It is true, however, that each stage of 
the world's history has been marked by the existence of characteristic laws 
and their embodiment in corres])nnding institutions; accordingly a study 
of those laws must reveal a picture of the time at which they were in force.* 

1 Even among the ancient Germans, where the family was not the unit of state organi- 
zation, family responsibility existed. See von .SchuUe, Lehrbuch der deutschen Reichs- 
iiiid Roclitsgeschichte, 3te Aufl. S. 30. Wuitz, Deutsche Verfassungsgeschichte, 2te Aufl. 
I., 442. At the present time the doctrine exists among savage peoples, as among the 
Goajira Indians, where " the whole caste [is] responsible for the acts of any single mem- 
ber." The Nation, No. 1077, p. 1.52. In old English customary law, responsibility for each 
others' acts was extended to all the members of the same guild or merchants of the same 
borough or city. Pee Reeves, History of the English law, II., 111!, 114. 

2 Arnold, Recht und Wirthschaft, 29. .So hiingt vor Allem die Hedeutung der beiden 
wichtigsteu Institute, des Eigenthums und der Vertrage, aus denen eigentlich das ganze 
Privatrecht besteht, auf das Engste niit den Culturzustanden zusammen." Arnold, 
Cultur und Rechtsleben, 61. "Man braucht nur die Namen Nomaden-, Akerbau-und 
Handelsvolker aus zusprechen, um sofort an patriarchalische, aristokratische und demo- 
kratische Verfassung erinnert zu werden." 

3 Puchta, Institutionen, II., § 282. Rudorff, Romische Rechtsgeschichte, II., 326-7. 

* Arnold, Recht und Wirthscliaft, 28. "So liegt auf der Hand, dass der Rechtszu- 
stand bei seiner Abhangigkeit von dem iibrigen Leben nur ein Ausdruck der jeweiligen 
Cultur eines Volkes sein kann," 



101] Law and History. 9 

Not only may the general features of an age thus be sketched in broad 
outlines, but the picture can sometimes, from the same source, be completed 
in its details. The provisions for the prevention and punishment of crime, 
for instance, are excellent indicators of the general temper of an age and 
people ; ^ not only so, but of particular times and circumstances. An under- 
valuing of human life marks the primitive nature of the present frontier 
life in America, analogous to that so characteristic of the early laws of 
England,- of Ronie,^ and of (Treece.* The causes are not difficult to find. 
A sparse population, whose most valuable possessions consist in movables 
widely scattered, must rely on the honesty of the individual for protection. 
When this reliance is forfeited the guilty individual must begot rid of. As 
practically all the members of the community are occupied with their pri- 
vate afTairs, there is no disposition, no time or money for the establishment 
of prisons and reform institutions. There remain therefore only two courses 
open — banishment from the community or death. It is not, then, that the 
comparatively wild life of primitive society makes people necessarily blood- 
thirsty and their laws accordingly cruel; it is probably fully as much the 
force of circumstances which dictates the most practical method of solving 
a difficulty inherent in the situation. Where torture is practiced, then it, 
to be sure, marks a cruel instinct in the people themselves. The refine- 
ments of torture are, however, no less characteristic of the courtly Spaniards 
of the sixteenth and seventeenth centuries than of the aboriginal savages 
of America ; and illustrate the fact that the worst side of human nature can 
at all periods come to the surface. This much, however, can be maintained, 
that on the whole, the advance of civilization tends to lessen the practice 
of cruelty.^ A closer examination of the criminal laws of a country leads 
us further, and enables the investigator to trace the jjhases of thought at 
various times uppermost in the minds of the community. As a good exam- 
ple thereof, may be cited the legislation in England for the punishment of 
offences against religion during the century following the Reformation ; 
Henry VIIT.'s struggle for supremacy, the rule of the churchmen under 
Edward VI., Mary's restoration of Catholicism, Elizabeth's endeavor to 
establish peace between all parties for tiie general strengthening of the 
nation, and so on, with the alternating success of various sects till the Res- 
toration, — all are minutely portrayed in the law books of the time. In a 
similar manner can the various phases of the claims and allowances of the 
prerogatives of royalty be traced in the statutes of treason, etc.^ The 

1 Stephen, Crim. Law, III., 60, speaking of the law of justifiable homicide, says : " The 
contrast between the earlier and the later form of the law on this subject thus marks the 
gradual progress of a change in the national manners." 

2 Ibid. III., 1C9. Reeve^s, Hist, of the English law, I., 120. 

3 Stephen, I., 9 et seq. Moritz Voigt, Die XII. Tafeln, I., § 5, p. 40, and g50, pp. 481 et seq. 

4 The laws of Draco, " written in blood." 

5 The causes of this phenomenon are enumerated and discussed by Buckle, History of 
civilization in England, ch. iv. 

6 Stephen, I., 14. 



10 Law and History, [102 

elements which go to make up civilization are so numerous and tlieir rela- 
tions so different at different times, that the historian can not well do other- 
wise than examine them analytically. All these elements have their 
exponents in the law ; and though the connection of the law is closer with 
some than with others, it will be found that the study of the law is able to 
throw more or less light upon all. 

To the average American, no two elements of life seem more widely sepa- 
rated tlian law and religicm ; but even here investigation brings to view 
unexpected results. In primitive society the ideas of religion, morals and 
law are so blended that it is impossible to separate tiiem.' Tlie rules of life 
are not yet recognized as general principles leaving room for freedom of 
action in detail. In social development, the particular takes precedence 
of the general, so that tlie customs of rude societies regulate each particular 
observance for itself,* without any attempt to systematize the wliole.* An 
act contrary to custom is at the same time an offence against the gods and 
a breach of the laws. Even at a later stage of social development, the 
judges are presumed to receive their authority and wisdom direct from the 
gods;* while the continuance till a recent period of the doctrine of the 
divine right of kings, is but another form of the same subtle connection 
between law and religion. Even after the tlieoretical recognition of the 
severance of these elements, their actual connection remains in force." 
Without reference to the relations of church and state still existing tiirough- 

1 Maine, Ancient Law, 16. "Quite enough too remains of these collections [ancient 
legal codes) both in the East and in the West, to show that Ihey mingled up religious, 
civil, and nierel}' moral ordinances, without any regard to did'ercnces in their essential 
character; and this is consistent with all we know of early thought from other sources, 
the severance of law from morality and of religion from law, belonging very distinctly to 
the later stages of mental progress." Arnold, Recht und Culturleben, 249. " Auch das 
Recht hiingt mit dem Glauben des Volkes urspringlich nah- zusammen, und seine Sym- 
bole haben ebenso wie die Hniuche der Sitte meist eine directe Beziehiingzum nationnlen 
Cultus." 

2 Maine, Ancient Law, 368. 

3 Stephen, TIL, 212. " It has often struck me as singular that in proportion as we go 
far back in legal history the law appears to become more and more intricate, technical, 
and minute in its details," and more and more vague in its general principles. Albert 
Shaw, The American State Legislatures. Contem. Kev., Oct., 1889, p. 559. " It was long 
very dillicult lor the people of the American commonwealths to perceive the evils of local 
and private legislation, or to distinguish clearly between the domain of general and that 
of special enactments. . . . The great bulk of the earlier legislation was of a private, or 
special, or local character. ... It remained for the newer states, in their plastic and 
formative stage, to show the older ones how entirely dispensable is legislation of this 
character." 

4 Herbert Spencer, First Principles, ? 122. "All ancient records and traditions prove, 
the earliest rulers are regarded as divine personages. The maxims and commands they 
uttered during their lives are held sacred after their deaths, and are enforced by their 
divinely descended successors; who in their turns are promoted to the pantheon of the 
race, there to be worshipped and proi)itiated along with their predecessors; the most 
ancient of whom is the supreme god, and the rest subordinate gods." 

5 Ibid. " For many ages religious law continues to contain more or less of civil regula- 
tion, and civil law to pos.sess more or less of religious sanction ; and even among the most 
advanced nations these two controlling agencies are by no means completely differentiated 
from each other." 



103] Law and History. 11 

out the largest part of Christendom, it is nevertlieless true that the two 
continue to exercise mutual influence upon each other. The effect of 
Christianity on the legal systems of modern Europe and of America admits 
of no question.! It can not be doubted, also, that the rule adopted bv the 
German authorities of the sixteenth century, that the religion of the prince 
should be the religion of his people, had an important influence in deter- 
mining the religion of thousands of Germans. The difference between 
Greek and Roman Christianity has been ascribed to the difference between 
Greek philosophy and Roman law.^ In the present, when the practice of 
religious toleration is practically universal, the mutual effect of law and 
religion upon each other is probably not so great. However this mav be, 
it still remains true, that much of the people's religious feeling finds expres- 
sion in the laws estaljlishing and regulating religious and charitable insti- 
tutions; and accordingly furnishes material for investigating the history of 
the period. To go back to the days of pagan Rome, we find religion spoken 
of as a " state institution ; '' ^ and the close connection of the functions of 
the priests with the conducting of all affairs of state, is well known. Furth- 
ermore, the entire criminal law was in the last instance based on the 
religious idea of expiation.* The long struggle between paganism and 
Christianity, the final triumph of the latter, the contests of the sects, the 
separation of the churches of the East and West, the gradual establishment 
of the supremacy of the Roman bishop, are all reflected in the laws." The 
formation of a large body of canon law is one of the best evidences of the 
intimate connection of law and religion;" while the fact that there was a 

1 Stephen, II., 474. "It was decided in Cowan vs. IMilbourne that a person was justified 
in refusing to carry out a contract to let certain rooms because the phiiutiff proposed to 
deliver in them lectures, the titles of two of which were advertised as follows : ' The 
Character and Teachings of Christ; the former defective, the latter misleading.' 'The 
Bible shown to be no more inspired than any other book.' " 

Ibid., II., 191. " A denial of the truth of Christianity, depraving the book of Common 
Prayer, and some others are statutory offences." See also Ibid., 475, and Lord Kenyon's 
charge to the jury in Rex vs. Williams, quoted in Ibid., 473. 

2 Maine, Ancient Law, 357. " I affirm without hesitation that the difference between the 
two theological systems is accounted for by the fact that, in passing from the East to the 
West, theological speculations had passed from a climate of Greek metaphysics to a climate 
of Roman law." 

s Mommsen, Romische Geschichte, II., 418. " Nur eine weitere Entwickelung desselbeu 
Grundgedankens ist die varronische Theologie, in der die romische Religion durchaus 
behandelt wird als ein Staatsinstitut." 

ilbid., L, 170. 

5 Puchta, System und Geschichte des riimischen Privatrechts, 'i 21(), a. Rudorff, Rom- 
ische Rechtsgeschichte, I., 254. Baur, Geschichte der christlicheu Kirche, 3te Ausg. I., 
438, 454 et seq., II. (2te Ausg.) 250. 

6 Maasen, Geschichte der Quellen und der Literatur des canonischen Rechts, I., 309. 
"Das biirgerliche Recht schopften Kirche und Clerus aus den in Uebung befindlichen 
weltlichen Reclitssammlungen ; bis im 9. Jahrhundert auch Sammlungen des romischen 
Rechts entstanden, die nur fiir den kirchlichen Gebrauch bestimmt waren." Von Schulte, 
Die Geschichte der Quellen und Literatur des canonischen Rechts, II., 26. "Man kanu 
wohl sagen; es gab kein Rechtsverhaltniss, keine Seite des sozialen und auch staatlichen 
Lebens, dass sich nicht unter irgend einem Vorwande zur Kompetenz des Klerus ziehen 
Hess." 



12 Law and History. [104 

long period when the clergy monopolized legal as well as other learning, 
has left its unmistakable impress on much of modern law. 

When attention is directed to the business world, its close relations with 
law are at once apparent. If there is one department of human activity 
wherein system is more necessary than in another, it is in business. Whether 
the work is that of the producer of raw materials, or that of the manufac- 
turer or the middle man, system is the first condition of success; and the 
natural result of systematization is, sooner or later, embodiment in law. 
In primitive communities business takes the form of barter and is regulated 
by custom. The growth of civilization brings about statutory regulations 
of business as of other relations in society. The aims sought to be reached 
by the statute laws at different periods of historical development have been 
very various, and their methods as different. As a whole, the progress has 
been from a system of exact regulation of private and local details to one of 
general rules for the good of the business community and the protection of 
society ; from the strict formality of Koman and Mediaeval law to the 
greater freedom allowed the individual in the present. 

The success of business depends largely on the ease of communication 
between individuals; for this purpose a common centre or meeting-place 
must exist ; and to this necessity the world is largely indebted for its city 
life, with all for good and evil thereby denoted. If Mommsen's theory is 
correct, it is to the trading spirit of the ancient Italians that, if not the 
founding, at least the im[)ortance of Rome was due.^ Certainly Tyre and 
Carthage owed their greatness to Inisiness enterprise. Coming down to later 
times, it is said that the city-building em[)eror of the Germans in the tenth 
century forbade the following of trades in the country districts, so that the 
newly founded marts, through a monopoly of manufactures, etc., might 
increase so much the more rapidly.' The followers of each particular line of 
activity, from that time on, were formed into a corporation or protective asso- 
ciation, by which their affairs were strictly regulated ; and within its own 
province each corporation was practically absolute. So far as the regulations 
of such companies are known to us, they assist us in drawing a picture of the 
condition of Europe for the centuries during which they flourished. From 
the making of shoes to the building of cathedrals or the writing of poetry, 
the activities of Christendom for several centuries were practically regulated 
by the guilds. Though eacii guild could be strict or even tyrannical in 
controlling its own affairs, it would not patiently submit to interference from 
outside, even from the highest authority. Accordingly in their struggle for 
corporate freedom of action they really gained much for the liberty of the 

1 Gescbichte Ronis, 7te Aufl. I., 46. "Pass Rom wenn nicht seine Entstehung, doch 
seine Bedeutiing diesen comnierciellen iind strategischen Verhaltnissen verdankte, davon 
begegnen denn aueh weiter zahlreiche Spuren." 

2 See Waitz, Jahrbiiclier des Deutschen Reichs unter Konig Heinrich 1., 3te Aufl., 1885, 
97-98. 



105] Law and History. 13 

individual.' Moreover, as the cities increased in size and wealth, the cor- 
porations advanced in importance, so that in the end, guild law became city 
law.2 That the original English charters of America were charters for 
trading companies is well known ; * and on this basis rests a large part of 
the present state constitutions of the United States. From the Reformation 
on, the guilds gradually lost their commanding position. They had served 
an important end in the world's history, but when in power overstepped 
their bounds, became tyrannical and were finally put aside to make way for 
state regulations of trade and manufactures. For the individual, however, 
the change was from one tyrannical controller to another; for the various 
states interfered with the natural course of business to an inmiense extent.* 
Adam Smith led the way theoretically and the American and French 
Revolutions pi-actically, to a better understanding of the conditions of mate- 
rial prosperity. The ideal condition has by no means even yet been reached ; 
but the individual has gained immensely in the freedom of control of his 
own business aflairs. 

The change of the ideal to be striven for necessitated an alteration in the 
method of proceeding. The wide-spread acceptance of the doctrines of 
Adam Smith was the first step ; the practical change of national policy 
followed more slowly. The doctrines of protection and of state regulation 
have as a rule been closely connected. Though the United States have sepa- 
rated them, and given practical freedom from state control, while maintaining 
a system of high tariffs, the countries of continental Europe retain still to 
a considerable extent the idea and practice of parental oversight and con- 
trol. On the whole, however, it is safe to say that tJie general tendency of 
recent times has been toward an increase of individual freedom; and not 
only that, but an increased recognition of the business community's ability 
to regulate its own affairs. It is not that the state does not interfere at all 
now, but it does so through general and not special laws, merely individual 
in their application. England led the way in this movement, in whose 

1 Wilda, Das Gildenwesen im IMittelalter. " Das Gelags-oder Gildhaus (doinus convivii) 
war und blieb noch laugere Zeit der iVIittelpunkt der Stadtbewohiier, die . . . gegen die 
Eingrifl'e, die Machtige auf ihre Freiheit luachten, zu sehiitzen, sich enger unter einan- 
der verbanden." 

2 Wilda, pp. 145, 152. 

3 For Massachusetts see Brooks Adams, The Emancipation of Massachusetts, idttseq. 

4 Colbert's policy in France is thus summaiized by Sybel:— "Um den Absatz nach 
aussen zu sichern, schrieb er iiberall die Ait der Fabrikation auf das Genaneste vor; um 
die Concurrenz von aussen her zu beseitigen, trat er mit einer Menge von Verboten und 
SehutzoIIen dazwischen." Stephen, III., 203. "Till within living memory, it was con- 
sidered to be the special duty of the [English] legislature to regulate all the most import- 
ant matters connected with trade and labor." See special cases of interference. Ibid., II. 
206. Also a curious law of the German Empire, 1555, called the " Polecey Ordnuug " in 
Corpus juris pnbiici, von Frankeu und Schumann, Leipzig, 1774. For early English regu- 
lations of wages, etc.. Reeves, History of the English Law, XL, 388 e( seq. For the growth 
of American law from the special to the general, see Albert Shaw, The American State 
Legislatures, Contemporary Review, Oct., 1889. For the change In general, see Richard 
T. Ely, Political Economy, 73. 



14 Laio and History. [106 

courts for centuries the law-mercliant has been recognized as a part of the 
common law, and as such, admissible of proof in^court as to the customs of 
merchants. The great increase in the frequency of employment of arbi- 
trators for the settlement of all kinds of disputes, from those between laborers 
and their employers to international difficulties, marks an important advance 
of the present century in the same direction. 

There is also another point of view from whicli the relations of law and 
business should be contemplated, viz., that change wrought by the modern 
increase in the importance of business, not only absolutely but relatively to 
the entire activity of tlie community, and the accompanying general ciuuiges 
in social conditions. In the ancient and Mediaeval world, war and politics 
were the chief cmj)lo\'ments of tiie citizen, while a few devoted their energies 
to the cultivation of philosophy or religion ; and thejindustrial pojnilation, 
on whose toil depended the subsistence of all, was composed of slaves, serfs, 
or at best of a menial class which was regarded ^^ratiier as a necessary evil 
than an important element in the prosperity of the community.' With the 
growth of cities and the corresponding increase of trade and manufactures, 
and therewith, of the classes devoted to these pursuits, there has necessarily 
arisen a cjiange in the ideas and relations of society, so that to-day, in the 
United States at least, those engaged in commerce or manufactures occupy 
the most important position in public tiiought. Commerce demands peace 
for its prosperity, and must therefore be the enemy'of war. Tlie devotees 
of war, in other times, were the possessors of landed property from which 
they drew their revenue, wiiile at the same time they could give themselves 
up to the pursuit of arms. Tlie activities of manufactures and counnerce 
require much more exacting devotion and personal attention on the part of 
those engaged in them, than the ])Ossession of realty, and'probably suggested 
if it did not necessitate the first employment of paid substitutes to bear 
arms; while still later arose in Italy, whose cities were the first in modern 
times to gain great prosperity by trade, the practice of employing mercenary 
troops in general. The separation of the occupations of industry and of 
arms made its way slowly but surely throughout the countries of Europe. 
There were of course fundamental social changes taking place at the same 
time. The decline of the warlike spirit lias been marked in general by a 
decline in the barbarous methods of conducting warfare, wliicii finds most 
significant expression in the laws and orders regulating the command of 
arms not only in times of peace, but also in times of war, and in the more 
humane and considerate treatment alike of friend and foe. One of the 
greatest services that the increased importance of business has rendered to 
humanity is tlie higher value it has caused to be placed on human life; the 
reason of this is the doctrine tiiat every individual is to be looked upon as 

1 Puchta, Institutionen, 9te Aufl., I., 129. "In den Handen dieser vornehralich waren 
die Gewerbe, niit denen kein von Freigebornen Staniniendersich befasste, niit Ausnahnie 
etwa der in Roiu sicli ansiedelden Fremden ; Handel und Gewerbe waren gering gescbatzt, 
und durch diese Missacbtung Patriciern und Plebejern untersagt." 



107] Law and History. 15 

a possible producer of something valuable to the life and comfort of the 
community. This is reflected not only in the modern laws punishing pettv 
offences against decency, but also in those enactments intended for the pro- 
tection of life and health in mines, manufactories, etc., as well as in the 
provision for foundlings and other unfortunates. But this change in social 
conditions, which has been so largely the result of increased business activity 
has had if possible a still more extensive consequence in national life, which 
also finds its best reflection in the law, viz., the founding of national debts 
and modern financial systems. So long as rulers had private estates and 
incomes sufficient to carry on the government, and every citizen was a 
soldier prepared to pay his own expenses ; when the booty of a successful 
campaign would more than repay the output, and the results of an unsuc- 
cessful one were borne with the hope of retrieving the misfortune at a later 
period, national debts were unheard ()f. When, however, a. large class 
withdrew from military life, and preferred paying money to assuming the 
personal work; when in consequence of this, and of the changed mode of 
warfare, standing armies arose, which had to be paid in times of peace as 
well as during war ; then it was that the uncertainties and misfortunes of 
war caused the contracting of national debts, which have in the course of a 
century and a half increased to enormous proportions, and caused a revolu- 
tion in national financial systems. This alteration in turn brought aljout 
the inauguration^of a new form of government which is one of the main 
features of modern civilization, i. e., representative government.^ However 
the individual circumstances in the various countries may have differed tlie 
real cause and the ultimate effect have been practically the same in prin- 
ciple, though various in detail. The methods of electing representatives 
for example, vary from the universal suffrage in America with direct repre- 
sentation, to the suffrage founded on a money and intellectual basis with 
election by delegated electors, of Prussia. The idea is, however, everywhere 
the same — the people who are to pay the money, claim the right to determine 
how much they will pay and in what manner the sum will be expended. 

There seems to be in hun)an nature an' instinctive desire to gain wealth 
without performing the labor which is its natural equivalent. This feeling 
was represented for ages by the alchemists. Their efforts proving futile, 
other methods were tried. Conspicuous among these was the system of 
chartering corporations and giving them a monopoly. The system of guilds 
was also, in part at least, representative of the same idea. For tlie very 
fact of their exclusiveness, combined with the restriction of employment to 
members only, shows the determination to sell labor or wares, as tlie case 
might be, at a higher figure than they would bring under a system of free 
competition. In like manner the idea has broadened its scope till the 
various nations have formed themselves into what might be termed national 
guilds, under their systems of protective tai'iffs, by which each seeks to 

1 See a striking illustratiou of tliis in Seeley, Life and Times of Stein, II., Cli. III. 



16 Lmo and History. [108 

become rich more rapidly than it would do under a system of universal com- 
petition, or free trade. This is not the place to discuss the arguments pro 
and con of protection. The subject is mentioned merely as furnishing an 
excellent illustration of the importance of an understandinn; of law in con- 
nection with history. This governmental fostering of certain industries has 
been the cause not only of wars between nations, but of sanguinary troubles 
within national borders ; it has also aided in the corruption of morals, as 
for example, by causing extensive smuggling, at one period in England. On 
the other hand, it has built up great industries w'hich have given employ- 
ment to thousands and bread to hundreds of thousands. The idea of raising 
artificial barriers to the effects of free competition has run its course, from 
the individual alchemist, through tiie community or guild, to the nation ; 
and has again taken hold of the individual imagination, and found expres- 
sion in the various forms of labor organizations. The avowed object of the 
latter is to give labor power to defend its rights against capital. But that 
the fundamental principle is to free the members from the effects of unlim- 
ited competition, will be seen by any one who gives the subject attention. 
The many strikes of thousands of " union men " have demonstrated beyond 
a doubt what was indeed earlier known, but not so plainly exhibited, viz., 
tiiat the strikers are contesting for their own ease and comfort. It has 
generally been found possible to supply within a reasonable time the places 
of the strikers, if only safety were secured to the ''non-union" men. In 
other words, organized labor refuses to recognize the truth of the law of 
demand and supply, and demands certain returns for work whether there 
are ten men or only ffve ready to perform a given service which five can do 
just as well as ten. The system would work very well for the five who 
could control a monopoly of the said service, if the other five could be got 
rid of; just as protection would produce magnificent results, if only one 
country were capable of enacting and enforcing protective laws and could 
accordingly profit l)y the free competition of all the rest. The spread of 
protection principles through all countries, large and small, however, dimin- 
ishes, if it does not nullify, the advantage of each. The entire labor move- 
ment has naturally an immense infiuence not only on the lives of the 
individual workers but also on the national development. The drift of 
public opinion from time to time, the attempted remedies for the evil con- 
dition of labor, the trial to suppress and later to regulate labor organiza- 
tions, are all to be studied in the laws, especially of England, where labor 
laws of many descriptions have been successively passed, modified and 
repealed.' 

This struggle to obtain wealth by artificial means forms but by-pallis of 
the great highway on which millions have travelled toward the acquire- 
ment of earthly possessions. The development of the various forms of 
industry by which man has sought to increase his wealth has been one of 
the most important elements of civilization. The accumulation of wealth 

1 Stephen, III., 20:J, 226-7. 



109] Law and History. 17 

in some form is ihe very foundation of advancement in civilization ; for 
until tlie moment when such a store enables its possessor to have leisure for 
some other pursuit than supplying his immediate wants, the first step 
toward civilization is impossible. Family rules, compacts as to future con- 
duct, as the understanding between Abraham and Lot, pave the way for 
general laws for the ordering of general industry. Such rules and laws, 
where open to the investigator, furnisii a treasure for the student of history, 
which enables him to judge of the condition and relations of the people 
whose laws they are. 

Such laws are not only a result of voluntary, individual action in the 
past, but also a strong factor in the development of the future. Take for 
instance the growth of the jus gentium in Rome, — at first the result of the 
coming of foreign traders to that city, and in turn the cause, or at least the 
foundation, of much that is best in modern law ; ' for the.fw.s (/eniiiim became 
the most practical part, for the business world at least, of the Roman law, 
and the Roman law has in turn become the common law of most of conti- 
nental Europe, has exercised great influence on English, and through that 
on American and Indian law, as well as formed the very bone and marrow 
of modern international law. The desire to gain wealth has had also other 
and more dii-ect influences on modern law and civilization than through the 
Roman law. Not to speak of the cumpulsory opening of China and Japan 
to international trade, with its great effect upon those countries, we can 
trace to the same source much of the mydern comity of nations. Not only 
does the intercourse brought about by the desire to trade, break down the 
barriers of national prejudice and thus open the way to mutual good feeling, 
but the expectation of deriving material advantage therefrom is an exceed- 
ingly important factor in establishing friendly relations between foreign 
powers. Though many private actions may arise out of high motives of 
benevolence, it will be difficult to trace the springs of national action to 
such a source. On the contrary, if we except perhaps the assistance given 
to Greece in her struggle for liberation from Turkish rule, it will be diflicult 
to find any important colonial or international event of the present age 
which cannot be attributed with justice to the hope of national gain, or 
what amounts to the same thing, a fear of national loss. The pursuit of 
wealth, whether by individuals or communities, has been sometimes 
advanced, often injured, but always reflected by the laws; so that, whatever 
its effect may have been, commercial law remains extremely valuable as an 
exponent of an important portion of individual and national life. 

One of the most noteworthy distinctions between the ancient world and 
the modern is to be found in the more important role that business relations 
play in the latter. Not the least weighty of the results of that renewed 
activity in Christendom usually designated by the term Renaissance, was 
the fact that new ideas gave rise to new wants which were only to be satisfied 
by increase in business activity. Figuratively speaking, war and commerce 

1 Puchta, lustitutioneu, I., J 83 elsetj. 



18 Law and History. [110 

lie on opposite sides of a balance, so that as one rises the other falls. War, 
which for ages, was not only the most frequent but also the most honorable 
occupation, is now generally looked upon as at best, a necessary evil ; while 
on the other hand, trade and manufactures, which were considered fit 
occupations only for menials, have assumed an importance second to none 
among national interests ; and this remarkable change is well reflected in the 
laws. They have futhermore an important reflex action. Though tlie days 
are probably past when a civilized country would enact such laws as the 
Navigation Laws of England which brought on the war with the Nether- 
lands in the middle of the seventeenth century (1G52-54), one can in modern 
commercial law still find the basis of great changes in national activity. 
Conspicuous examples of this are the German and French laws allowing a 
bounty on the export of beet sugar, by which this industry has been stimu- 
lated to an enormous extent, and has recently been the principal subject of an 
international understanding between those countries and England. Witness 
also the tremendous influence on the business world of the laws authorizing 
the establishment of the so-called limited companies and of our system of 
national banks. The list might be almost indefinitely swelled. 

What has here been drawn in broad outlines is capable of proof by fol- 
lowing in detail the results of imlividual laws; but that would increase 
unnecessarily the length of the present article. Enough lias been said, it 
is hoped, to make it evident, not only that the professional historian should 
know something of law, but that ^i certain amount of instruction in law 
would be most valuable, if il is not absolutely necessary, in connection with 
our universitv courses in historv. 



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